Gray v R

For offenders under 18, the statutory test for dangerousness remains whether there is a significant risk of serious harm. It is not replaced by a requirement of a very grave risk. Youth, maturity and capacity for change are relevant to that assessment, but do not alter the statutory threshold.

On a sentence appeal, shortcomings in the sentencing judge’s reasoning are material only if they show that the sentence was wrong in principle or manifestly excessive. A sentence of detention for public protection may be imposed where an extended sentence would not adequately protect the public under section 226(3) of the Criminal Justice Act 2003.

The appellant, aged 16 at sentence, pleaded guilty at Winchester Crown Court to two sexual assaults contrary to sections 3 and 7 of the Sexual Offences Act 2003. One offence involved a six-year-old girl and the other an adult woman.

On 12 February 2007, the judge imposed two sentences of detention for public protection with minimum terms of two years. The appellant challenged the finding of dangerousness and contended that an extended sentence should instead have been imposed.

The central issues were whether the statutory dangerousness test for a young offender required a very grave risk, and whether the judge was entitled to find that an extended sentence would not adequately protect the public.

1. Appeal dismissed. The court’s function was to decide whether the sentence was wrong in principle or manifestly excessive on the material available at sentence, together with any material properly admitted on appeal. Defects in the sentencing remarks did not provide a free-standing ground of appeal. The court followed the approach in R v Roberts [2016] EWCA Crim 71 and R v Johnson [2006] EWCA Crim 2486.

2. The applicable test for a defendant under 18 was the statutory test of a significant risk of serious harm under sections 226 and 229 of the Criminal Justice Act 2003. The court rejected the contention that R v JW [2009] EWCA Crim 107 had introduced a higher test of a very grave risk. Its references to very grave risk summarised Youth Justice Board guidance and could not amend the statutory test. The guidance in R v Lang & Ors [2005] EWCA Crim 2864 remained applicable: significant risk exceeds a mere possibility, while a young person’s maturity and potential for change are relevant considerations.

3. The finding of dangerousness was open to the sentencing judge. The appellant’s offending history, the serious index offences, and the probation and psychiatric assessments supplied ample material for that conclusion. Dangerousness had also been conceded at sentence.

4. The judge had correctly addressed the question required by section 226(3): whether an extended sentence would adequately protect the public. He was entitled to depart from the probation officer’s recommendation of an extended sentence. He had considered the appellant’s youth and possible development, but reasonably concluded that the timing and extent of improvement were too uncertain to make automatic release after an extended sentence safe. The Parole Board was best placed to decide when release could safely occur.

• Court of Appeal (Criminal Division): dismissed the appeal against sentences of detention for public protection: [2016] EWCA Crim 1034.
• Winchester Crown Court: on 12 February 2007, imposed two sentences of detention for public protection, each with a minimum term of two years less time on remand.